LEONARD SALESKY v. KAREN BALICKI

November 29, 2010

LEONARD SALESKY,PLAINTIFF,v.KAREN BALICKI, ET AL. DEFENDANT.

The opinion of the court was delivered by: Simandle, District Judge:

OPINION

Plaintiff Leonard Salesky, a prisoner confined at South Woods State Prison, initially filed a "Motion for an Emergent Order To Prevent Untimely Death of Petitioner" in his 28 U.S.C. § 2254 case (Docket No. 10-4806). By Order dated October 5, 2010, this Court severed that motion into this separate 42 U.S.C. § 1983 matter [Docket Item 2]. Plaintiff was ordered that within thirty days of that order he shall file an Amended Complaint spelling out his claim under Section 1983. Due to the apparent gravity of Plaintiff's medical situation, Defendants were ordered to show cause why a temporary restraining order should not be issued directing defendants to provide medical care and treatment to Plaintiff. On October 20, 2010, Defendants filed their Letter in Lieu of a Formal Brief in Response to Claims Regarding Plaintiff's Medical Care [Docket Item 3].*fn1 On November 1, 2010, the Court received a letter from Plaintiff in response to Defendants' filing [Docket Item 4]. On that date, the Court also received Plaintiff's Amended Complaint [Docket Item 5]. Plaintiff has paid the $350 filing fee.

At this time, the Court must determine the outcome of Plaintiff's request for preliminary injunctive relief and review the amended complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A to determine whether it should be dismissed as frivolous or malicious, for failure to state a claim upon which relief may be granted, or because it seeks monetary relief from a defendant who is immune from such relief.

I. BACKGROUND

The factual allegations taken from Plaintiff's Motion and Amended Complaint are accepted as true for purposes of this review.

In his Motion, Plaintiff alleges that he presented initial symptoms of illness to prison medical authorities in March of 2010, but as of his filing on September 24, 2010, six months had elapsed without treatment for what has now been diagnosed as esophageal cancer.

On October 20, 2010, Defendants filed their letter brief and Certification of Dr. Hesham Soliman, which states that Mr. Salesky has received continuous medical care, including many consultations with various medical professionals. Defendants argue that while Plaintiff would like to have his treatment begin immediately, there are preliminary tests required in order to determine the proper course of treatment. The final test required, an MRI, was administered on October 15, 2010, when Plaintiff also was seen by the oncology and surgical medical professionals at St. Francis Medical Center. On October 18, 2010, the oncologist recommended surgery and radiation and/or chemotherapy.

Defendants assert that Plaintiff has received the proper care, and it would have been unethical to initiate treatment without the proper preliminary testing.

# On April 15, 2010, Mr. Salesky was seen by the medical department for right groin pain, left chest pain, and elevated PSA. A chest X-ray, EKG, and urology consultation were ordered. # On April 28, 2010, Mr. Salesky was seen by a urologist who recommended a prostate biopsy, which was conducted on May 24, 2010 and revealed focus of atypia. # On July 6, 2010 during a scheduled urology follow-up visit, Mr. Salesky was examined for his complaints of heart burn and chest burning and was scheduled for a GI evaluation. # The GI evaluation was conducted on July 21, 2010, and a EGD and colonoscopy were done on August 10, 2010. # On August 16, 2010, the biopsy revealed an invasive squamous cell in the distal esophagus. A chest and abdominal CT scan were recommended, along with a follow-up with oncology. # The chest and abdominal CT scan were completed on August 31, 2010, and Mr. Salesky was advised of the results on September 8, 2010. # On September 17, 2010, Mr. Salesky was seen by oncology. An abdominal MRI, PET scan, endoscopic ultrasound, and radiation oncology evaluation were ordered.

# On September 28, 2010, the oncology recommendations were discussed with Mr. Salesky, who expressed anger that treatment would not begin immediately.

# The PET scan was done on October 5, 2010, and the MRI was done on October 13, 2010.

# On October 15, 2010, Mr. Salesky was seen by oncology and surgical medical professionals, and on October 18, 2010, the oncologist recommended surgery and radiation and/or chemotherapy.

# A surgical consult was requested on October 18, 2010. Dr. Soliman certifies that the medical staff is taking all steps to ensure that Mr. Salesky is ...

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